By Lili Bayer* – POLITICO
The Prime Minister of Hungary took advantage of the vulnerabilities of
the bloc’s legal and political systems.
It wasn’t supposed to be like this.
As it grew over the decades, the European Union took great care to ensure that any new member met a series of basic criteria: that its democratic systems were robust, that its judiciary was independent and that its authorities respected the rule of law and the rights of minorities.
What it didn’t account for was a scenario where one of its members, having joined the Union, would start to roll things back — leaving the bloc of nominally democratic members with a government using authoritarian tactics to entrench its rule.
And yet, 16 years after the largest expansion in EU history, that’s what Hungary under Prime Minister Viktor Orbán has been doing, according to watchdogs, MEPs and EU officials.
Last year, the think tank Freedom House downgraded its assessment of Hungary to “partly free” due to “sustained attacks on the country’s democratic institutions.” Over the past decade, the watchdog added, Orbán’s Fidesz party “has used its parliamentary supermajority to impose restrictions on or assert control over the opposition, the media, religious groups, academia, NGOs, the courts, asylum seekers, and the private sector.”
Observers from the Organization for Security and Co-operation in Europe found that the country’s 2018 elections “were characterized by a pervasive overlap between state and ruling party resources, undermining contestants’ ability to compete on an equal basis.”
This new Hungary presents a puzzle for the EU, as it prepares to roll out its first rule of law report assessing the bloc’s 27 member countries on September 30. While the Commission has framed the report as a new safeguard to protect democratic institutions across the bloc, few expect it to stop Orbán’s abuse of the rule of law.
After all, he has spent the past decade getting away with it.
The following account draws on interviews with more than a dozen current and former politicians and officials, including former commissioners, former European Parliament rapporteurs and longtime civil servants. It details the ways Orbán has capitalized on vulnerabilities in the bloc’s legal and political systems to hollow out Hungarian democracy without ever facing meaningful political or economic consequences from the EU.
The EU’s failure to deal with what it has branded as serious democratic backsliding by one of its own members has implications that go beyond its relationship with Hungary. With other countries such as Poland facing similar accusations, it raises the question of whether the bloc can hold together as a community of values.
“The Commission has done its utmost,” said Viviane Reding, who served as the European Commission’s vice president in charge of justice, fundamental rights and citizenship from 2010 to 2014. “It is very frustrating because ‘the utmost’ is really not enough in order to solve such a problem, which nobody had intellectually speaking foreseen, and didn’t put the means and tools in order to handle.”
Keep your friends close
Orbán’s problems with Brussels began not long after he was elected prime minister for a second time in 2010.
In January 2011, the prime minister — fresh from a landslide electoral victory in which Fidesz won two-thirds of seats in Hungary’s legislature — stood at the European Parliament’s plenary in Strasbourg and rebutted accusations that he was undermining press freedom.
Hungary had just taken over the rotating presidency of the Council of the EU for the first time, but the occasion was overshadowed by controversy over Budapest’s creation of a powerful new media authority, including a “media council” whose members were all selected by Fidesz. Under the new rules, media outlets had to register with the authority and were required to run content it deemed “balanced.”
Orbán’s appearance in the plenary chamber quickly degenerated into a verbal brawl. French Green MEP Daniel Cohn-Bendit — visibly agitated — told Orbán during a debate that he is “on the path of becoming a European Chávez.” A number of MEPs in the chamber appeared with tape over their mouths in protest and held up copies of a Hungarian newspaper.
“You threatened me, that Hungary was moving towards a dictatorship,” the Hungarian prime minister shot back in response to criticism from left-wing, liberal and green MEPs. “What is this if not an insult to the Hungarian people?”
Not everybody was critical of Orbán, however. As the Hungarian prime minister finished speaking, Joseph Daul, then-leader of the European People’s Party group, could be seen applauding him from the front row.
At the time of Orbán’s 2010 election, many European politicians still saw the Hungarian leader as an anti-communist reformer — and his election victory had delighted many in the EPP’s leadership, including Daul.
Orbán first gained a spotlight with an anti-Soviet speech as a young liberal in 1989. But after his party did poorly in the country’s first free elections, he began a quest to find a new home on the political spectrum. By the time he was first elected prime minister in 1998, he had moved Fidesz firmly into the center right, and in 2000 he brought Fidesz into the EPP — the EU’s biggest political family.
“Everyone wanted to believe that this was our guy,” said Frank Engel, a former MEP from the Luxembourg Christian Social People’s Party, which is part of the EPP.
The support of EPP bigwigs like Daul mattered. The EPP is powerful in no small part because it has chosen to keep its umbrella open as wide as possible. Its members range from German Chancellor Angela Merkel’s Christian Democratic Union to Bulgarian Prime Minister Boyko Borissov’s GERB.
For the party, remaining the bloc’s largest political group is key for holding on to coveted European Parliament committee chairmanships — and top Commission posts. For Orbán, membership offered something more: a series of close relationships that helped him weather accusations of authoritarianism even as he tightened his grip on power.
“It became clear to me relatively soon after [the 2010 election] that what was going on in Hungary was far beyond an election win and a power change,” said Engel, who quickly became one of Orbán’s most vocal critics within the EPP. “It was a state change, and in fact was going to become state capture.”
Voices like Engel’s were in the minority. For much of the past decade, senior EPP figures believed they could keep Orbán in the fold, while also keeping his abuses of democracy in check.
“Viktor Orbán likes to provoke,” Daul said in an interview with Euractiv in 2015. “He is the ‘enfant terrible’ of the EPP family, but I like him.”
Other backers of keeping Orbán within the broad party included Merkel’s CDU, according to Reding, the former European Commission vice president who is a member of Luxembourg’s Christian Social People’s Party.
“Countries like Germany at that moment still thought keeping him in the family … will bring him back to order, which didn’t happen,” Reding said.
Take one step forward, two steps back
Orbán’s membership in the EPP proved crucial in his first big fight with Brussels — over the controversial media laws.
Over and over during the past decade, the Hungarian leader has introduced measures that pushed the limits of what his fellow EU leaders were willing to accept, only to row back under fire to secure a partial victory. It’s a strategy that some of his critics have called his “two steps forward, one step back” approach.
When it came to the media laws, the Commission could have been tougher, according to Neelie Kroes, a liberal Dutch politician who served as the Commission’s vice president at the time, and handled the file.
Kroes said that she could have been stricter with Hungary if Orbán had not been — like then Commission President José Manuel Barroso — a member of the EPP. “Don’t underestimate the biggest political party involved — and with the president linked to that party — that they want to keep the family member in their circle,” Kroes said in a phone interview.
Asked if the Hungarian ruling party’s membership in the EPP helped Orbán, Kroes laughed. “It didn’t help me,” she said.
By the end of the battle, following pressure from Barroso, some controversial elements of the media rules were amended — modifications were made to the requirements for “balanced” coverage, for example — but concerns about the changes Orbán made persist to this day.
In a 2015 opinion, the Venice Commission — an advisory body of the international organization Council of Europe — called on the rules governing the selection of members of Hungary’s media council to “be changed to ensure fair representation.”
Earlier this month, the media council announced it will not extend the license of Klubrádió, Hungary’s last critical radio station, citing alleged violations of the media laws.
“The media council’s decision rejecting Klubrádió’s renewal shows that Viktor Orbán is on a path to eradicate what remains of Hungary’s independent press,” said Scott Griffen, deputy director of the International Press Institute, another media watchdog. “The European Union claims that press freedom and fair market competition are among its core values, yet it has so far failed to defend these values in Hungary.”
Former Commission President Barroso says that his team approached Hungary objectively.
“The party affiliation of Mr. Orbán had absolutely no influence in the handling by the European Commission of the rule of law issues in Hungary,” Barroso said in an email.
Muddy the waters
The Hungarian government also fended off criticism by pointing to similar laws or policies in other EU countries.
During the media laws debate, the Hungarian government published rebuttals of international criticism, providing long lists of examples of similar elements in the media regulations and practices of other EU countries like France, Germany, Italy, Lithuania and Austria.
“What we tried to do was to demonstrate to our critics by using comparisons that our solutions were not unique by far,” said Tibor Navracsics, who was Orbán’s justice minister between 2010 and 2014 and later served in the Commission. “Moreover, those policies criticized by the Commission could be found in other member states as well.”
It’s a strategy Rui Tavares, a former Portuguese MEP who was appointed Parliament’s rapporteur on Hungary in 2012, described as Orbán’s “Frankenstein” approach.
“Dr. Frankenstein built a monster, and the monster is made up of bits and pieces of other bodies that in themselves are not problematic,” said Tavares. “It’s the mix that is problematic.”
For Tavares, the problem was that Fidesz officials would swamp EU officials and politicians with details and examples — but it was only once you looked at how the pieces fit together that the systemic problems became apparent.
Here too, Orbán’s membership in the EPP helped smooth the way, as Hungarian efforts to draw parallels with other countries resonated with many party members.
Reding, who served in the Barroso Commission, expressed concerns early on about checks and balances in Hungary — but said that she had a “terrible time” when appearing in the European Parliament to discuss concerns about the rule of law situation in Hungary.
“The EPP was supporting Orbán,” Reding said in a phone interview. “Parliament was really putting me to pieces … my own party.”
Exploit divisions
Orbán has always rejected criticism that he is undermining democratic norms. He argues instead that he is simply building a different kind of democracy, referring to his vision as “illiberal democracy” and “Christian democracy.”
“The rebellion against liberal intellectual oppression is not only widening, but also deepening,” the prime minister wrote in an essay published earlier this week in Hungary’s conservative newspaper Magyar Nemzet.
“The doctrine that ‘democracy can only be liberal’ — that golden calf, that monumental fetish — has been toppled,” he added. (The Hungarian government did not respond to questions for this article.)
Orbán ‘s vision of Europe and democracy has rankled some members of the EPP, especially in the more liberal northern states. But it has also found resonance among other elements of the party.
Some EPP members argue that critics are exaggerating concerns about issues like media freedom and anti-Semitism in Hungary, and that Orbán’s government is being treated unfairly by the international press. They point to rule of law issues that emerged over the past decade in other countries like Malta, Slovakia and Romania under governments affiliated with the rival Party of European Socialists.
“Unfortunately, the debates on rule of law are too often used as opportunities to pursue biased trials, condemning some harshly without concrete facts, while remaining silent against other governments that commit real faults on crucial issues,” French EPP MEP François-Xavier Bellamy said in an email in July.
Orbán’s flirtation with the far right — he often makes appearances with the center right’s rivals, including far-right leaders like Italy’s Matteo Salvini and the Netherlands’ Geert Wilders — is also a constant reminder to the EPP that if they cut him loose completely, their opponents would gain an energetic organizer with 13 seats in the European Parliament.
His high-profile criticism of migration — especially after Council decisions on the relocation of asylum seekers in 2015 — has played into some of the internal divisions in the EPP, and helped deflect criticism about the rule of law.
By hammering on the wedge issue and presenting himself as representing European conservatism, Orbán “shifted the focus from rule of law, respect of fundamental values and human dignity — which was the main problem from our point of view — to [a] larger political orientation matter,” said former Finnish Prime Minister and former Commissioner Jyrki Katainen, who is a member of the EPP.
“There were some party leaders, but especially more MEPs within the EPP group, who found themselves very close to Orbán in migration policy,” Katainen said in a phone interview. “And that was one of the reasons why criticism was not louder.”
The EPP’s patience with Orbán continued for years, even as the Hungarian prime minister targeted civil society groups, reined in the media and held elections that were criticized by the OSCE. It also continued as Orbán refused to respect EU asylum rules.
The party’s breaking point didn’t come until 2019, when the Hungarian government targeted one of the EPP’s most prominent politicians: then Commission President Jean-Claude Juncker.
In a billboard campaign funded by Hungarian taxpayers, Juncker was accused, along with Hungarian-American businessman George Soros, of pushing migration plans that “threaten Hungary’s security.”
For many in the party, criticizing Juncker in this fashion was a step too far.
“I think there is a limit, and the Hungarians have been violating this limit,” former European Commissioner Günther Oettinger said in a phone interview.
“What is problematic is mainly the style,” said Oettinger, a member of the German CDU. “You can fight with [Juncker] by arguments, but not — as the Hungarians did — against him as a person.”
Since leaving the Commission last year, Oettinger has said he plans to take up a position as co-chairman of Hungary’s National Science Policy Council, which advises the government on innovation and research.
After the Juncker episode, the EPP faced growing pressure from members who wanted Orbán to be expelled from the party. The party’s leadership brokered a compromise whereby Fidesz was suspended instead.
The suspension had little impact on daily cooperation between Orbán’s party and the conservative family. Orbán no longer meets with his fellow EPP heads of state and government ahead of meetings of the European Council. But Fidesz MEPs continue participating in the work of the EPP group in the European Parliament.
A new vote on whether to expel Fidesz is expected in the coming months, but the party family’s most influential member — the CDU — remains divided on Orbán.
It’s “unbelievable” that Fidesz is still part of the EPP group, said Judith Sargentini, a former Dutch Green MEP who served as rapporteur for Hungary in the last European Parliament.
Run out the clock
In addition to benefitting from the cooperation of the EPP, Orbán has taken advantage of the fact that the EU is simply not set up to deal with challenges from within.
“Before you become a member of the European Union … you have to become a democracy,” said Reding, the former Commission vice president. “The whole system is built on [the assumption that] once you passed this difficult moment, you can only go a step forward.”
This has allowed Orbán to make fundamental changes to almost every aspect of Hungarian public life, from school textbooks to the electoral system to the ownership of media companies — without immediately triggering EU sanctions.
“The Treaty of the European Union is very simple and clear,” the Hungarian prime minister said in August. “If any member state has any dispute with any European institution, they have to go to the Court: the European Court. And we always do that,” he said.
Orbán’s allies have long argued that he is not violating rule-of-law standards because his government respects the European court’s decisions.
Orbán “may be provocative, but we have always found solutions,” Daul said in 2015. “Either he has gone back on his declarations or he has found himself before the Court of Justice in Luxembourg, whose decisions he has always applied to the letter.”
But some officials now acknowledge that by the time the Luxembourg-based court rules, the damage is sometimes already irreversible — regardless of whether Orbán’s government loses at the end and complies with the ruling.
In early 2012, the Barroso Commission started legal proceedings against Hungary in three areas: the independence of the central bank, the independence of the data protection authority and the non-discrimination of judges.
The Commission was particularly worried about the Orbán government’s move to reduce the retirement age of judges from 70 to 62 — forcing out many senior judges. Faced with limitations to its legal competence in this field, the Commission got creative and sued on the basis of age discrimination.
The Hungarian government was initially caught off-guard by the Commission’s infringement proceedings.
“We were surprised by the fact that the European Commission reacted so harshly,” said Navracsics, Orbán’s former justice minister. “Previously the Commission never had reacted politically to any development in Hungarian politics.”
The Commission ultimately won in court, but the victory was bittersweet: The judges’ positions had been filled. Some chose to stay in retirement, while others went back to work — but not necessarily to their original posts.
A similar outcome took place after the Juncker Commission referred Hungary to the Court of Justice in 2017 over legal changes that in effect made it impossible for the Budapest-based Central European University to continue its normal operations.
The European court has yet to rule on the case — but in the meantime, the university was forced to move the bulk of its operations to Vienna.
Play the system
Some say the Barroso Commission missed the big-picture rule-of-law threat early on by focusing on narrow violations. The Commission was “very legalistic” and acted “very on a case-per-case basis,” said Tavares, the former rapporteur.
(“While there are certainly limits to the EU’s intervention possibilities on this matter, the Commission has done its utmost in addressing the rule of law issues in Hungary,” Barroso said.)
The approach taken during Jean-Claude Juncker’s time in office fared little better.
Juncker came to office in 2014 — over the objections of Orbán. And despite outwardly friendly ties between the two leaders, Juncker did not hide his concerns about Hungary. He once jokingly greeted Orbán as “dictator!” as the Hungarian prime minister walked into a 2015 summit.
“We had many discussions within the [EPP] party about Fidesz and Orbán, and the atmosphere among the party presidency members was very, very negative towards Orbán’s behavior,” said Katainen, the former Finnish prime minister.
Juncker, he added, was “quite vocal against Orbán’s behavior” during EPP meetings.
Under Juncker’s leadership, the Commission started proceedings against Hungary over its treatment of foreign-funded civil organizations and asylum seekers.
Commission Vice President Frans Timmermans, who held the rule of law portfolio at the time, frequently raised concerns about the situation in Hungary — irking officials in Budapest.
Under the Barroso Commission “issues could be reasonably dealt with via negotiations implying the relevant experts to the mutual benefit of all parties,” László Trócsányi, an MEP who served as Hungary’s justice minister between 2014 and 2019, said in an email. Under Juncker, “there was no more room or very little for reasonable approach,” he said.
Still, the Commission held back from what EU policymakers sometimes describe as “the nuclear option” — Article 7 of the treaty of the EU, which allows for the suspension of a country’s voting rights.
Even as the Commission was wrestling with Orbán, it was also confronting rule of law issues in Poland. But while it formally triggered Article 7 proceedings against Warsaw in 2017, it did not do so for Budapest.
It was only after the European Parliament acted in 2018 and formally triggered Article 7 that proceedings were started against Hungary. (The EPP split on the issue. MEPs from Italy, Spain, Slovenia and Croatia opposed the measure, while those from northern countries were generally supportive of it. Critically, German conservatives were divided, though the EPP’s leader in Parliament Manfred Weber voted in favor.)
Few expect Orbán to suffer many consequences from the Article 7 process. While either the Commission or the Parliament can start proceedings, it takes a unanimous vote in the Council before sanctions can be imposed.
Hungary would not get to vote on its own punishment, but it can count on vetoes from friendly governments in places like Poland and Slovenia.
“Everybody looks away,” said Sargentini, the former Parliament rapporteur on Hungary. “But it’s the Council that really refused to act.”
There is a sense in the Council — even among some governments that dislike Orbán’s policies — that Article 7 should be avoided. The worry is that isolating a member country could put further pressure on the bloc even as it is still recovering from the United Kingdom’s decision to leave.
“You are never going to win with Article 7, as the treaties stand now,” Reding said.
Pocket the gains
Last year, Orbán greeted his third Commission president since his reelection in 2010, and this fall that president — Ursula von der Leyen — is planning another push to tackle the rule-of-law dilemma.
There are already fears that efforts amount to too little, too late.
On September 30, the Commission will present a report on rule of law in Europe, assessing the situation in each of the bloc’s 27 member countries in areas like media pluralism and checks and balances.
The reports will then be discussed among representatives of the member countries, in a process that is designed as a “early warning” system for identifying problems as they emerge. But with over a decade of mounting rule-of-law problems, it remains unclear how much impact the new system will have in Hungary.
One proposal on the table, inherited from the Juncker Commission and now under negotiation, aims at making the distribution of EU funds conditional on respect for rule-of-law criteria.
“It’s quite difficult to ask the taxpayers in the member states … to spend more money, faster, with more flexibility — without a real guarantee that we are sharing the same values,” Commissioner for Justice Didier Reynders said in an interview.
It’s far from clear whether either the report or the proposal for rule-of-law conditionality will be able to bring Orbán to heel. Budapest is likely to dismiss the report as just another unjustified attack from Brussels — and the measure has no enforcement mechanism to ensure violations are met with consequences.
Meanwhile, Hungary and Poland have been fighting — thus far successfully — to water down anything that would curtail the distribution of EU funds, and have threatened to block the EU’s planned €750-billion recovery fund if the proposal on the link between the budget and rule of law is not concluded to their satisfaction.
In Hungarian government circles, the mood toward von der Leyen is one of optimism. “Hopes are high, and I trust that the Commission will find back a professional approach to the question of the rule of law,” said former Justice Minister Trócsányi.
How this plays out will be significant not just for democracy and the rule of law in Hungary, but for the EU and the European project. With concerns rising about the rule of law in Poland, Bulgaria and Malta, what happens in Hungary could determine the course of the entire Union.
“We should have acted earlier,” said Sargentini, the former rapporteur. “It is late now,” she added. “But if the member states would get it together, they could still do something.”
If history is any guide, they won’t.9/24/20
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*Lili Bayer is POLITICO Europe’s budget reporter. She was previously a correspondent in Budapest, where she covered Hungarian politics and Central Europe’s relationship with Brussels. Lili earned a master’s degree in Russian and East European Studies from the University of Oxford and a bachelor’s degree from Georgetown University’s Walsh School of Foreign Service.
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Related (background):
Poland joins Hungary in threatening to block EU’s budget and coronavirus recovery package
Warsaw and Budapest join forces against rule of law mechanism that would deny funds to violators eny funds to violators
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Hungary threatens to hold EU’s coronavirus recovery fund hostage over rule of law
Budapest wants to limit any rule of law criteria on spending.
https://www.politico.eu/article/coronavirus-recovery-fund-hungary-rule-of-law-fight/